Director of Public Prosecutions v Noonan

[2018] VCC 161

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00416

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL NOONAN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2018
DATE OF SENTENCE:	22 February 2018
CASE MAY BE CITED AS:	DPP v Noonan
MEDIUM NEUTRAL CITATION:	[2018] VCC 161

REASONS FOR SENTENCE
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Subject: Subject: Criminal law - sentence           

Catchwords:   Pleas of guilty to two charges of common assault and one charge of making a threat to kill – complainant is former wife – context of acrimonious family law proceedings concerning child of the marriage – incident occurred in playground at conclusion of access visit – accused tried to take child – mother assaulted when she tried to stop accused – complainant terrified by threat to kill – has had to leave business and relocate -     

Sentence:      2 yr CCO     

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar	DPP
For the Accused	Mr S. Lee	Novatsis & Alexander

Pages 1 - 8

 

 

HER HONOUR: 

1Michael William Noonan, you have pleaded guilty to two charges of common assault and one charge of making a threat to kill.  The victim of this offending was your former wife, and it occurred in the context of an extremely acrimonious dispute over access visits with the child of the marriage. 

2You and she had separated in April 2014 after a three-year marriage.  In March 2015, orders that have been described by the prosecution as interim and final consent orders were made by a judge of the Federal Circuit Court.  The orders stipulated that the child was to live with the mother and that you were to spend time with him for two hours twice a week and at such further times to be agreed upon by you and the mother.  It was understood that over time, your time with the child would incrementally increase. 

3Five months later on 23 August, the offending occurred.  You were spending time with your son, then aged four, in a playground while your ex-wife was seated about 50 m away.  At about 11 am, she approached you and said that it was time to go.  You argued about forthcoming Family Law matters and you told her you were going to take the child and the police and the court could not stop you. 

4You picked up the child and walked away from the playground.  His mother followed and when you tried to put the child into your car she screamed at you to let go of him.  You told her in abusive terms whilst holding your son, to shut her mouth. 

5Your actions were observed by Fiona Larson, a person unknown to either of you who had arrived at the playground with her children and was close by, getting out of her car.  She heard your ex-wife scream at you not to take her son and saw her struggling to retrieve him from you.

6You grabbed the child by the lower arm and he screamed and was upset.  His mother managed to get him back and she ran to her car.  You went to your car, then turned back towards her.  Ms Larson then saw you grab your ex-wife’s jaw and pull her face towards you whilst she was holding the child on her hip; that is Charge 1 on the indictment.

7You then said to her, "I'm going to slit your throat while you sleep and I'm going to enjoy every moment of it."  That is the first part of Charge 3, making a threat to kill.

8Ms Larson did not hear this but heard you yelling and said you were, "…quite in her face."  She said that after you had grabbed your ex-wife’s jaw you hit the rear of the car twice with your fist.  She said you were aggressive to the mother throughout the incident. 

9At this stage you again tried to take the child but his mother held onto him and told you not to and she managed to put him in her car.  This was when you hit the car with your fist. 

10While his mother was fastening the child's seat harness you told her she should be scared of you and you were going to show why.  She locked the car and you demanded that she open it and give the child to you.  You tried to force the door handle open.  You told her again while close up to her face that you were going to slit her throat in her sleep; that is the second part of Charge 3.

11You then slapped her arm hard twice and said, "I'll show you what assault's really like"; that is Charge 2, the second assault charge. 

12You then said, "You're fucked and I'm going to fucking kill you"; that is the third part of Charge 3.

13You then drove away.  Ms Larson spoke to your ex-wife, who told her that you had really hurt her face and that you had threatened to slit her throat while she was sleeping and bathe in her blood.

14This was an appalling attack carried out in a public place, to the great concern of at least one member of the public, and subjecting the complainant not only to pain and fear for herself and the child, but objectively also to public humiliation. 

15You went to the local police station and told an officer of the existence of a Family Law order.  You asked what would happen if you took your son from your ex-wife.  You were advised not to do that but to go to the Family Court.  It beggars belief that you would have expected to get specialist advice of this sort from a police officer and suggests that in going to the police station, you realised you were in trouble and it might look better for you if you arrived there before the complainant, who might well have been on her way there.

16She did arrive at the police station but on seeing your car there she drove away and called 000.  With the operator still on the phone she drove back to the police station.  As she got out of the car with the child, you approached her and told her you were going to take the child and she was "fucked", to use your terminology.  She went inside and reported what had happened, following which police arrested you outside the station.  You participated in an interview in which you denied the allegations. 

17Your ex-wife was examined by a doctor two days later and he noted bruising on her jaw and her left arm, with painful neck movements.  The child was also found to have bruising on his arms. 

18This case commenced in the summary stream of the Magistrates’ Court but was later uplifted into the committal stream, and a contested committal was held on 2 March 2017.  On 2 October 2017 you pleaded guilty, having indicated that intention to the prosecution on 15 August.  The trial listed for 16 October was vacated and today's plea date was then fixed. 

19As to your personal background, you are a 28-year-old man working as a robotic lateral cutter operator.  You have a very limited criminal history with no previous offending that is relevant to the current offending.  You have no problems with substance abuse and there are no psychological issues.  You are now married to Stephanie and together you have one child with another due in May.  You have her support and that of your parents. 

20A number of character references were provided, all of which speak well of you as a person most unlikely to engage in any violence.  One writer stated that she did not believe you were capable of violence, as alleged, and in her experience you were very calm when in situations that tested you.

21Similar experience were noted by others.  None of the writers grappled with the reality of what occurred, as though they did not believe it or accept it as being true.  There is no hint of any regret or remorse on your part that has been conveyed by these writers.

22The fact that you have pleaded guilty, even at a relatively late stage after contested committal in which the complainant was vigorously cross-examined, calls for a discount on your sentence and I have taken that into account. 

23That is what the law requires, because the plea has facilitated the progress of the case and has spared the complainant and other witnesses from having to give evidence and be further cross-examined in a trial.  Of itself, the plea does not indicate remorse in this case and tells me nothing about your prospects of rehabilitation.

24The maximum penalties are five years' imprisonment for the assault charges and ten years for making a threat to kill.  A term of imprisonment is open for me to impose in this cases because of the serious nature of family violence, particularly in this case where the complainant was left terrified as to what might happen to her in the future and, importantly, where your child was subjected to your violence and aggression. 

25The complainant made the courageous decision to read out to the court her victim impact statement and in it she made clear how terrified she was and has remained, and how devastating it has been for her to have to change her life so fundamentally. 

26When final orders were made in the Federal Circuit Court she was given permission to relocate together with her parents, and to change the child's name.  She has had to leave behind her friends and the business she has built up herself over many years, and to leave Melbourne, the city she considers she belongs to.  Clearly, that would not be done lightly.

27It is most important that others understand from cases like this that violence of this sort will be punished by the courts and will be roundly denounced.  That is why prison might be appropriate to drive that lesson home.

28I must take into account that this is your first offence of this type and it would be your first experience of prison were I to sentence you in that way.  Having carefully considered that option, I am of the view that appropriate punishment can take the form a Community Correction Order. 

29It will deprive you of your liberty to a certain extent and will have the advantage of exposing you to alternative views as to how to deal with fundamental conflicts of the sort which have unfortunately played such a big part in the lives of you and the complainant in the last few years.  That is the best way to satisfy the need for specific deterrence, that is, to deter you from ever behaving in this way again.

30Will you stand please now and I will explain to you, Mr Noonan, that the Community Correction Order will begin today and it will last for two years.  Convictions will be recorded.  You must perform 100 hours of unpaid community work within six months.  You will be under supervision and you must take part in any programs to which you might be directed, including a men's behaviour change program to reduce the risk of reoffending.  If you are found to have breached the order in any way, you may be liable to be re-sentenced. 

31You have a new family to look after, together with your wife, and you have a job which is no doubt reasonably demanding and calls for considerable responsibility.  Those factors would suggest that you will give very careful consideration to your future behaviour, meaning that your prospects for rehabilitation are probably quite good.  I do not put it more highly than that.

32The prosecution seeks an order for the obtaining of a forensic sample of saliva under s.464ZF of the Crimes Act.  That is opposed by you through your counsel on the basis that the offending was an aberration, committed out of frustration and does not justify a sample being taken.

33I take the view that making a threat to kill in the circumstances of family violence is so serious as to warrant the order being made and I do so. 

34The Community Correction Order was ready for signature but would you like to look first, Mr Lee?

35MR LEE:  Yes, thank you, Your Honour.  If I could also ask that some or all of the hours of the men's behaviour change program be credited towards the unpaid community aspect?

36HER HONOUR:  That is an option that is available, yes.

37MR LEE:  Yes, thank you, Your Honour.

38HER HONOUR:  Mr Lee, that would mean probably in effect that some of the hundred hours will not have be performed but I doubt whether the men's behaviour program would take up 100 hours. There will be certainly a considerable portion of the unpaid work left to be done.

39MR LEE:  Yes, yes, of course.  May I just approach my client?

40HER HONOUR:  Certainly.  Ms Fallar, my associate printed out copies of the 464ZF.

41MS FALLAR:  Yes, Your Honour.

42HER HONOUR:  I have signed those. 

43MS FALLAR:  Thank you, Your Honour.  May I seek just two things, perhaps just explain to Mr Noonan about the forensic sample, whether it is Your Honour's intention for it to be a buccal swab.

44HER HONOUR:  Yes, exactly.

45MS FALLAR:  And the other one would be the Corrections warning if in case of contravention.

46HER HONOUR:  Yes, I have not advised Mr Noonan about the 464. 
Mr Noonan, just stand once more please while I explain to you about the taking of the sample of saliva.  I am just required to say to you, according to the legislation, that the police do have the power to use reasonable force to obtain that sample if necessary, but I trust that will not be a problem.  Is there anything else, Ms Fallar?  You did mention something else.

47MS FALLAR:  A contravention of CCO might in itself mean three months.

48HER HONOUR:  Yes, I thought I had said that.  Just one moment.  I think I have covered it sufficiently, Ms Fallar.  I will not go into that any further. 

49MS FALLAR:  And of course 6AAA is not mandatory because it is ‑ ‑ ‑

50HER HONOUR:  No, it is not necessary.

51MS FALLAR:  Thank you.

52HER HONOUR:  Anything further, Mr Lee, that I might have omitted?

53MR LEE:  No, Your Honour, nothing arises.

54HER HONOUR:  All right. 

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